Note: We received the following letter as a submission to the Burn Bag. As most of our readers know, the Burn Bag submissions are by design short (though not always sweet) but we’ve decided that this letter merits an exception because it provides our readers a perspective that’s different from the currently prevailing one.

We do not know the identity of the writer but we have a few things that we can share with our readers. S/he is an FS-03 Foreign Service Officer who said s/he was dismayed by the latest public resignation that got so much media attention. S/he has previously served overseas in Asia and also in D.C. where s/he staffed various Department principals, witnessing first hand some of State’s long-standing problems. The writer understands that it would be better to attach her/his name to this piece, but wants to remain anonymous because his/her letter “is not about me, it is about showing that the Foreign Service is multi-dimensional and should not only be defined by Shackelford’s resignation letter.” For those interested, the Shackelford letter is here. Both letters are presented without comments. You are welcome to use the blog’s comment section for civil discussion. Follow @Diplopundit

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The Foreign Service Should Thank Rex Tillerson

In his book Political Order and Political Decay, Francis Fukuyama makes a powerful argument that the “quality of the American government has been deteriorating steadily for more than a generation.” This is in stark contrast to alarmist news articles asserting that the State Department’s current problems began on the day of Donald Trump’s inauguration. Leading the most recent and vocal charge, Foreign Service Officer Elizabeth Shackelford’s much publicized resignation letter has been touted as a symbol of plunging morale and dysfunction within the Department. Shackelford follows the narrative that Secretary Tillerson wants to gut State and diminish the role of diplomacy. Yet underlying these assertions is a misconception of what a healthy State Department looks like. They also fail to grasp interagency dynamics that outlast successive administrations.

In an example of unqualified assertions, former Counselor of the Department Eliot Cohen penned a recent op-ed skewering Secretary Tillerson’s redesign efforts as “management-jargon-laden reforms…that demoralized the Foreign Service.” I cannot argue with the recognition of a demoralized Foreign Service. Change is hard and selling it to our community of stakeholders has never been easy. Secretary Tillerson and his team have thus far failed to communicate the redesign’s benefits, but honestly, in the current politicized environment, would they have been able to? If the Foreign Service wants to reclaim our standing as non-partisan professionals, we should look at the problems the redesign is meant to address and work to shape the discussion, rather than opt out or disrupt from within.

Secretary Tillerson started his redesign by asking a simple question “what is the Department of State’s mission, and how can it best achieve goals and objectives?” While this can easily be dismissed as Diplomacy 101, it is a necessary question to ask. Unlike the military, the State Department operates at the behest of our political leadership and Congress. Inherent to both are special interests groups that back them. So while politicians breathe new life and ideas into the bureaucracy, over time they have also contributed to a dilution of State’s mission – heaping pet projects and cumbersome reports onto a Department unable to handle them. The result has been an erosion of State’s autonomy and increasing overlap between conflicting priorities. Every year we process over 300 congressionally mandated reports on topics ranging from intellectual property and labor issues to democracy promotion and counterterrorist financing. All of these issues have merit, yet how can an embassy advance broader U.S. interests when it has officers asking host governments to pass laws strengthening IPR protection, counterterrorist financing, and trafficking in persons all at the same time? The outward message gets diluted. If everything is a priority, nothing is.

The energy and zeal with which dedicated foreign and civil servants advance the various issues in their portfolio should be commended. Likewise, it is important to understand their frustration when a new administration determines that their work is no longer a priority. That said, creating a more streamlined, mission focused State Department will necessarily leave some stakeholders disillusioned. As we have seen, even the prospect of change has riled a bureaucracy that has grown accustomed to protecting its budgets and issue areas at the expense of broader coherency and efficiency. As a low-level FS-03, I do not claim to know what the Department’s priorities should be. But it is healthy for the Secretary to ask questions on whether we should promote democracy over institution building or freedom over good governance.

Shackelford’s assertion that high-level departures and resignations over the past year have handicapped U.S. diplomacy is misguided. For nearly a decade there has been a group of senior FSOs that have traded ambassadorships and leadership positions amongst each other, effectively blocking much needed generational change. While these FSOs all served with distinction and the way they were pushed out was unbecoming of their decades of service, we should not mourn their loss.

Cohen claims that Secretary Tillerson’s “incapacity at finding and pushing through appointees” crippled his effectiveness. And to that I ask, would Cohen prefer self-serving political hacks instead? While congressional and political oversight prevents bureaucracies from “running amuck,” political patronage has the opposite effect, usually serving to advance narrow short-term interests. In the United States political loyalty is rewarded with positions in government, often (but not always) to the detriment of bureaucratic autonomy and the ability to create long-term strategy. The fact that Secretary Tillerson chose to rely on FSOs in acting positions, elevating their status and providing them increased stature, demonstrates the value he places on their experience and expertise. When pundits complain about a leadership vacuum at the State Department, I have to wonder: where is the Foreign Service Association in standing up for career FSOs like Susan Thornton and Francisco Pamieri who have successfully led their respective bureaus?

So why, if Secretary Tillerson wants to reform the Department, has he enthusiastically embraced a 30% budget cut? Let’s start by looking at the role congress plays in forcing pet projects on the Department and reducing bureaucratic efficiency with a maze of regulations and mandated reports. Congressional micro-management has decreased State’s effectiveness, forcing skilled bureaucrats to spend time on creativity stifling administrative work rather than formulating policy and strategy. Funds for pet projects are cheered at the time they are allocated, but it takes people, time, and money to spend money. Once an initiative is introduced it becomes embedded in the bureaucracy and takes on a momentum that is difficult to reign in. Temporarily cutting funds is one of the best ways to force difficult decisions. It also helps signal to special interest groups that the Department is going to be prudent in deciding which issues it will take on.

Asserting that the Department’s decline started on January 20, 2017 makes it easy to forget the neglect of previous Secretaries and helps us brush off the necessary, but painful, changes Secretary Tillerson is trying to push through. It also serves to absolve the bureaucracy for its complicity in facilitating State’s declining influence. I witnessed our collective failings first hand staffing Department principals. Information memos often came up with boilerplate jargon, offering no useful insights or recommendations. Briefing checklists were full of platitudes but lacked tangible goals the principal needed to achieve during his/her meeting. It is no wonder Secretary Tillerson expanded the policy planning staff.

I do not know if Secretary Tillerson’s redesign will be successful. I do not know if he is adopting the right approach or tactics. What I do know is that if the State Department continues on the same course it will permanently cede influence to political appointees at the NSC and their backers at partisan Washington think tanks. I also know that if the Foreign Service gets mired in partisan rhetoric and the political buzzwords of the day, it will lose any remaining support it has in congress and with the American public.

The American people need career diplomats, not only to develop policy and strategy, but also to help conserve and pass down to future administrations the democratic values and diplomatic traditions that have made this country great. Sadly, our ability to deliver on this mission has been in decline for decades – a bloated NSC is just one example how State has failed to provide the executive branch with what it needs. Stemming this institutional decay will require a Secretary willing to take political punches and a bureaucracy ready to suffer through a period of painful change. Self-serving resignation letters full of unqualified assertions are not bold statements. They are an abdication of responsibility that reinforces stereotypes of the State Department as a “deep state” bureaucracy acting outside the interests of the American people. Nothing could be further from the truth.

This is an EEOC case about a complainant who was the Consul General at the U.S. Consulate General in Naples, Italy. The name used here is a pseudonym as in eeoc practice but the details are similar to the ugly, nasty case a few years back that made the news. Most notable lesson here about the Privacy Act, and the limits of Diplomatic Security’s willingness to clear somebody’s name when needed.

Believing that the Agency subjected him to unlawful discrimination, Complainant filed an equal employment opportunity (EEO) claim with the Agency. On November 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. This decision on the breached settlement was issued in November 2016. Excerpt below:

Background:

The record reflects that a subordinate of Complainant (Subordinate 1), who resigned in May 2012, and to a lesser extent her spouse made highly charged allegations against Complainant, i.e., entertaining prostitutes, escorts, and married women in his residence during work hours, engaging in fraud or mismanagement of funds, permitting his driver to be fired so his job could go to someone else and as a form of retaliation, throwing metal umbrella pots from his sixth floor residence down to the parking lot below and then jumping on and crushing them, and this was captured on CCTV and in front of the security guards, and so forth. By April 2013, the U.S. Embassy Rome, in consultation with the Bureau of Diplomatic Security, Special Investigation Division initiated an investigation. The investigation was conducted by two Special Agents with the Bureau of Diplomatic Security, and involved 20 individual interviews with Consulate Staff. It concluded that the accusation that Complainant threw metal pots was “false,” and the three other allegations specified above were completely false. The investigation found that the remaining allegations were variously false, completely false, unsubstantiated, not supported by evidence, and one, in essence, grossly exaggerated.

On June 16, 2013, the New York Post and Fox News published highly negative stories about Complainant, writing for example that Subordinate 1, a whistleblower, said Complainant had trysts with hookers, and this was the latest black eye for the scandal-ridden State Department. On June 17, 2013, Complainant was copied on an Agency email chain regarding the New York Post reporting Subordinate 1’s allegation that Complainant insisted a staffer have an abortion and the staffer said she got her “tubes tied” at his instruction. It was indicated in the email chain that the staffer said the article was “all lies” and felt strongly that she should respond to the article by saying something. The above DCM advised that it would be much better for the staffer not to say anything for now – that this could all blow over quickly.

In his EEO claim, according to Complainant, he alleged discrimination when he was denied assignments in line with his experience, ability, and professional background, the DCM knew that allegations against him by Subordinate 1, her spouse and two others were false and failed to take appropriate action, and management held him accountable for the false accusations and denied him support.

By letters to the Agency dated February 1, 2016 and May 10, 2016, Complainant alleged that the Agency misled him into entering into the settlement agreement and breached it. Specifically, he alleged that when he signed the settlement agreement, the Agency knew Subordinate 1’s EEO complaint had been investigated with a finding of no wrongdoing on his part, that she would likely continue to litigate in federal court, and he could have used the EEO decision to exonerate himself. Complainant wrote that after the settlement agreement, Subordinate 1 continued to attack him in the press, with articles appearing in prominent news outlets such as Newsweek and the New York Post. He pointed to a proposed June 2013 Agency press release recounting that the Diplomatic Security Service investigated the allegations and found no violations of U.S. or Italian law, and contended that had the press release been issued this would have rebutted the articles or they would not have been published. He argues that the Agency allowed employees and family members to utilize the EEO process to raise false allegations against him despite the Agency’s conclusion that they were baseless, and in failing to clear his name breached the settlement agreement and made it ineffective and unenforceable.

The Agency found that it complied with the settlement agreement. Regarding term 9.d, the Agency found that Complainant’s submittal of proposed changes to his 2012 EER was a condition precedent to the former DCM reviewing them and considering making changes, and Complainant admitted he did not submit proposed changes because he was too disheartened and depressed. On appeal, Complainant, who is represented by counsel, confirms this, but adds another reason was that he lacked the necessary facts, particularly the EEO decision on Subordinate 1’s complaint.

Regarding term 9.g, the Agency recounted that Complainant stated it was breached because (1) the Agency simply wrote a one page memorandum simply listing the allegations against him and stating they were found to be unsubstantiated rather than discussing things in context to show how his accusers seized on scandal to defame him and hinder his career, (2) the memorandum was only based on facts until October 2013, failing to fulfill its purpose of summarizing the Diplomatic Security investigation,3 and (3) the Agency, in response to his inquiries, could not give him a clear answer on whether he could share the memorandum with family, colleagues, friends, and his Italian attorney, preventing him from doing so. On appeal, Complainant confirms that he raised reasons (1) and (3). He argues that not being able to share the memorandum makes it useless and his reason for entering into settlement negotiations was to restore his reputation.

In determining that it complied with term 9.g, the Agency found that it met its obligation to provide a summary of the investigation, and that there is no evidence the parties agreed to any specific format in or upon the use of the memorandum.

In determining that it did not negotiate the settlement agreement in bad faith, the Agency found that Complainant cited no authority for the proposition that it was obligated to divulge the outcome of Subordinate 1’s EEO case, and there was no evidence it negotiated in bad faith.

On appeal, Complainant adds that he would not have bargained for a memorandum summarizing the results of the Bureau of Diplomatic Security’s investigation had he known he could not use it, this is common sense, and the Agency’s failure to authorize its use is a breach of the settlement agreement. Complainant argues that the Agency breached the settlement agreement by failing to live up to the spirit of the document. He argues that the Agency’s failure, upon his request, to allow the issuance of the proposed press release in the Agency’s name violates the settlement agreement.

In opposition to the appeal, the Agency argues that disclosing Subordinate 1’s employment discrimination investigation would violate privacy right protected information, and it did not negotiate the settlement agreement in bad faith.

Decision

In June 2013, after the New York Post reported highly charged accusations by Subordinate 1 about the way Complainant treated a staffer, an Agency email string on which Complainant was copied showed the staffer wanted to say something rebutting what was reported, but the former DCM opined it would be much better if the staffer did not say anything now – this could blow over quickly. Further, Complainant strongly suggests that he was aware the Bureau of Diplomatic Security investigation was favorable and he certainly knew the Agency had done nothing to publically clear his name. While Complainant wanted the Agency to publically clear his name, he agreed to a settlement agreement that did not have a term explicitly doing this. Instead, the Agency agreed to issue to a summary of the Bureau of Diplomatic Security to Complainant – not the public.

Complainant’s contention that the Agency bargained for the settlement agreement in bad faith is not persuasive. First, as argued by the Agency, it had reason to believe the administrative decision on Subordinate 1’s complaint was protected by the Privacy Act, since administrative EEO records are generally within the scope of the Act. Further, Complainant has not shown he did not already have sufficient information to make a fair bargain when negotiating the settlement agreement.

“The State Department has now confirmed intent to hire only 101 new FSOs (including 55 Pickering and Rangel Fellows) in 2018, down from 366 in 2016…That hiring target—101—is the lowest in at least a quarter of a century.“ https://t.co/92ILNZVSK8

In related news, on December 12, Tillerson announced several immediate changes attributed to the redesign at the State Department (see Tillerson Announces “Immediate Changes” From Redesign, USAID is Now in the GAL – Yay?). The number one item on the list of “wins” was the “Expanded Opportunities for Eligible Family Members” and the announcement that the State Department was “lifting the hiring freeze for 2018 EFMs and providing the bureaus with greater placement flexibility.”

We have since learned from two sources that “lifting” the hiring freeze actually means a 50% lift. We understand that Bureaus will be allowed to fill 50% of their EFM jobs, and they will have the authority to make those decisions themselves, instead of those requests going all the way up the godpod.

Also it turns out USAID is also already in the GAL (the last item on Tillerson’s list of immediate changes)? What’s that? Tillerson’s inner circle celebrating the town hall should not do a happy dance? And no cookies either?

But seriously — what process did the redesign teams go through that resulted in this decision to lift, excuse me, lift the hiring freeze for 50% of 2018 EFMs?

What kind of study are they conducting regarding the rest of the EFM jobs?

What was the decision process for imposing this freeze in the first place, we’d really like to know.

Because unless Tillerson is planning on some post closures, these EFM jobs are needed at our overseas posts whether there’s a redesign or not, whether it’s now or later. The work will still be there: community liaison, mailroom clerk, security escort, security office assistant, general service assistant, etc. Are they going to come back after the “redesign” is completed and say go ahead, you may now hire the other 50% because we’ve figured out posts need them afterall? Or are they going to lift the other 50% the next time Tillerson gets into a dire press patch, and needs another “win”.

So you know, it’s good that 50% of diplomatic spouses waiting for jobs overseas will now be able to fill some jobs but this still doesn’t make sense. To us, this still feels capricious.